Megaupload Points Out That The Feds Want To Destroy Relevant Evidence In Its Case

from the fair-trials? dept

There are all sorts of problems with the federal government's arguments against Megaupload. Even if the site and its founders are guilty of breaking the law, it's amazingly troubling to look at the details of how the government has gone about proving this. The most immediate situation, as we've been discussing, involves the handling of the data on Megaupload's servers.

Very soon after the raids, the feds told the hosting company that Megaupload used, Carpathia, that it no longer needed the data and that it could be destroyed. As we pointed out at the time, this made no sense at all. After all, the government is alleging that this content is at the center of a criminal conspiracy ring. So why would it want the evidence destroyed? Furthermore, it seems likely that there could be plenty of evidence on those servers that support Megaupload's case (ah, perhaps that's why the government wants it destoryed!).

Of course, since then, a bunch of parties, including Megaupload, EFF, Megaupload users and (oddly) the MPAA have gotten involved in trying to preserve the data, while the hosting firm, Carpathia has asked the court for permission to delete it, get paid for it, or have someone take it off their hands. Megaupload has specifically offered to pay Carpathia to get the servers, but since the government seized all its assets, it can't do that. Plus, the government has objected to this plan. Furthermore, the MPAA -- which still wants the data preserved -- has claimed that if the content goes to any third party it's infringement -- and could lead to the revival of Megaupload.

The United States has seized and frozen all of Megaupload's assets, which, together with those seized from the other Defendants, include more than $60 million in cash and well over $100 million all told. In taking this extraordinary step, the Government must necessarily be alleging that every dollar of these assets is the proceeds of illegal activity. The basis of this allegation are the Government's self-selected copies of a tiny fraction of Carpathia's 1,100+ servers; even as to that fraction, the Court is asked to assume that every scrap of information on those servers amounts to criminal copyright infringement or perhaps some other illegal activity. If there is logic to the Government's actions, there is nothing lawful to be found across Megaupload's business as reflected on those 1,100+ servers. Only thus might the Government forbid Carpathia from so much as transferring to Megaupload the Mega Servers housing Megaupload content. Notably, the government is further forbidding Megaupload from using any of its assets to pay Carpathia for continued preservation of the Mega Servers' content. And, it has, in the face of Carpathia's earnest submission that it will cease preserving the servers absent the requested relief, urged the Court to deny such relief, because "the government has already completed its acquisition of data from the Carpathia Servers authorized by the warrant." ... In essence, the Government has taken what it wants from the scene of the alleged crime and is content that the remaining evidence, even if it is exculpatory or otherwise relevant to the defense, be destroyed. And by refusing to permit Megaupload to use its assets to mount a defense, the Government is effectively making sure that Megaupload has no practical way to preserve the evidence itself.

Such a course of proceeding by the Government would be troubling in any circumstance. But this is, of course, a criminal case. It is, in fact, what the Government has called the largest such case it has ever brought in the history of alleged copyright infringement. If the Government's position now wins the day, the integrity of of what ensues will be lost--the Mega Servers will have been wiped and potentially exculpatory or relevant evidence will have been spoliated, en masse, before being properly surveyed by the parties, not to mention the Court. The Government's case may be advantaged by this course of action, but much else will suffer and due process will not permit it.

The filing also rips to shreds the Justice Department's claim that the content should be destroyed because some of it may contain child pornography, by noting that it appears the US government is advocating the destruction of evidence of child porn, rather than using it to capture those responsible:

Its reasoning then becomes altogether mystifying when it asserts (without any substantiation) "that the Carpathia Servers may contain child pornography, rendering the Carpathia Servers contraband." ... To take the Government at its word, therefore, it at best is greeting with equanimity and at worst is advocating, the imminent destruction of evidence of child pornography. It is passing strange for the Government to express preference for the destruction of evidence of criminal misconduct over the preservation of it for criminal investigation.

The filing is worth reading, as it goes on in great detail, about the ridiculousness of the government's position, and how it is clearly destroying important evidence in this case, hoping to set it up so that Megaupload can only use the sliver of evidence that the government chooses to make available to it. And it's doing this before the actual case begins, where Megaupload doesn't even know the full details of what evidence is being presented and how it can defend itself. Without that, it's highly questionable, and almost certainly a violation of due process to support the destruction of evidence when Megaupload doesn't even know what evidence it needs to defend itself.

As Tim Lee writes (at the link above) about this filing, this whole situation looks really bad for the government, and seems completely contrary to our basic concepts of due process and innocent until proven guilty:

The government's intransigence on the preservation of evidence is the latest example of the government's scorched-earth approach to the Megaupload prosecution. Theoretically, criminal defendants are innocent until proven guilty. Yet the seizure of Megaupload's servers, freezing of its assets, and arrest of its top executives did immense damage to the company long before they had a chance to tell their side of the story to the jury. Now, the government seems to be trying to deny Megaupload the opportunity to fully defend itself in court. Megaupload may be found guilty, but like everyone else it has the right to a fair trial.

Indeed. Megaupload may not be a sympathetic defendant at all, and may very well have violated the law. But if the government truly believes it has a strong case, why is it trying so hard to destroy so much evidence? If the case is as strong as the Justice Department makes it out to be, then surely it can withstand Megaupload having access to all of the evidence? That the Justice Department is fighting so hard to destroy evidence in the case seems like a clear admission that it knows its case is incredibly weak.

Reader Comments

This was never about copyright infringement

The Justice Department's trying to cover their tracks. People are finding out that Megaupload didn't do anything wrong and that the real reason they were targeted is for Megabox, and now the Justice Department is trying to sweep the whole thing under the rug as fast as possible to avoid embarrassment.

They say that sunlight is the best disinfectant. Keep shining light on this case!

Re: This was never about copyright infringement

+1
This is about Politicians and their Corporate Masters.
Even if MU did something wrong I am going to stand FIRMLY on their side.
In the End when these things come out in a Courtroom the Government will look like the total assholes they are.
You Do Not Destroy Evidence !!!
I hope that MU will be able to sue this Government for such a large sum of money it will be talked of World Wide.
I hate Washington ! I have a very low approval of Washington !
I no longer care about Washington as they do not care about any of us and they will use whatever means they can to bring you down.
Justice Department your Misconduct is going to haunt you Big Time and we all now hope you are the loser and MU is set free.

It's a great story, but (a) Megaupload, if they were truly a responsible company providing a backup service, would itself have everything backed up somewhere, and (b) there is no reason to maintain data in multiple data centers. At best, a single copy is required - and that is at best.

It's Mega's responsibility to have a backup of their data - as any sane service provider would do.

Re:

I'm a bit confused...Your first statement says that not having a backup is irresponsible, but your second statement says that you shouldn't maintain multiple storage facilities. Is this some new form of NewSpeak or am I just having a stroke?

Re: Re:

No, they should have a backup that isn't in a datacenter somewhere - or that isn't part of their active server farm. Essentially, there should be a backup and could recreate the site even if every server they had was flooded or struck by lightning. It's a good business procedure.

The point of multiple data centers is if the data is located in more than one place, perhaps the feds are telling ONE of the centers that they don't need to them to maintain their copy. Unless all of Mega was in that single host with that single data center, there shouldn't be an issue (and at least one full copied maintained). Remember, they had a lot of servers to handle the 90% of their traffic that was purely downloading stuff. There is a lot of data replication required to do it, but not a lot of unique data.

Re: Re: Re:

So what you're saying is that:
1) they should have a backup
2) that backup couldn't possibly be using their service providers utilities
3) this backup shouldn't cost anything given that their assets are frozen
4) that there is no way this backup would also have been seized
5) and finally that a backup meeting all of these qualifications is required in order to receive due process?

Re: Re: Re: Re:

1) obvious. A backup is a business requirement for anyone, especially a company that has so many legit users that are absolutely depending on them for mission critical storage.

2) Those backups could be using any method they want. however, a true backup isn't kept in the same location as your current data, as it defeats some of the safeguards (example: fire or flooding would destroy both server and backed up data)

3) The backup should have been ongoing. This isn't a question of froken assets, the data should have been backed up on a regular basis in the past.

4) The backup could be seized, but likely would not require ongoing costs to maintain. The question is $9000 a day of server costs, right?

5) It's not a question of due process - it's a question of operating a business on a level that assures the security of your customers data. If your customer data wasn't worth backing up on a regular basis, then why make a big fuss about it being lost now? Clearly, any number of natural disasters or poor programming choices could have wiped out all of the data with no backup in place. Is that really the operating procedure for a company that is supposedly a secure backup location for so many people?

All that, and you call me ignorant? That makes you bat shit crazy in my book.

Re: Re: Re: Re: Re: Re: Re:

It's got nothing to do with keeping the business running. Regardless of best practices according to AC #58, if that's the only copy of the data the government should not be calling for it's destruction because it's evidence.

Re: Re: Re: Re: Re: Re: Re:

The seizure was illegal. They had filed the wrong restraining order, removing Dotcom's chance to do anything about it, and busted in there, taking everything. And then they filed for all the shit they did take after the fact.

Re: Re: Re: Re: Re: Re: Re: Re:

You need to read. The only "wrong restraing order" as you call it was the way a certain seizure notice was filed in New Zealand, and only for assets in that country. It was corrected and everyone has moved on.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re:

Had backups be made available for the purpose of evidence, the business would still not be running, so your point doesn't make sense. There's nothing in the law that requires the government to run a business into the ground, either.

Re: Re: Re: Re: Re:

1. Their system uses a custom file system which stores data in such a way that it is redundant across their servers. They were doing this to protect their business just like you suggest.

2. Flooding wouldn't destroy the data and fire is suppressed at all data centers automatically. Furthermore most data center companies have multiple locations/facilities. Carpathia hosting included, they have 5 in fact.

3. I don't know what "froken" assets are, but when the feds seize all of your business assets, that will include ALL assets, such as backups hosted anywhere.

4. I don't think you realize the volume of data they serve. You can't just "make a copy". All content services of this scale (ie. YouTube) use some form of deduplication (data duplication) method to spread data redundantly between their servers across their datacenter facilities. This prevents failures you listed.

5. It is a question of due process. Their business operated just fine. You just don't understand how data is protected at this scale, because you don't know what you're talking about....

Re: Re: Re: Re: Re: Re:

You are right. But that doesn't explain why they want to preserve two complete data centers, nor does it explain why they want to have access to user data.

Their argument isn't about preserving the user's data, it's about building a defense. I cannot understand the concept of needing to access user accounts to do so. Clearly, their release of the number of "government" accounts on their system should indicate that they already have access to stats and information.

Their argument would be much better made that they want to have access to the administration areas and functions of the systems, or at least the data from the admin, so they can obtain activity records and such. Getting access to your personal photos shouldn't be the issue here.

Preserving customer data does not require both data centers. Making their defense doesn't need any customer data. The issues should be seperate, and they are (IMHO) foolishly arguing both together, and justifying neither.

Their filing just doesn't seem to match up to your explanation of backups either. They make no mention of it, nor do they suggest that they have any real redundancy in place.

Re: Re: Re: Re: Re: Re: Re:

They DO need to preserve customer data. The federal indictment against Megaupload is includes charges of storing and serving copyright data, this is USER DATA. This means the data itself IS EVIDENCE. Both sides, prosecution and defense, have a right to examine the material evidence to use it at trial to either make a case or defend against it. Megaupload is attempting to secure this evidence from being destroyed so they can examine it to defend themselves against related charges.

My explanation is that they are NOT backups. Fault tolerance is NOT achieved via backups by any content storage system of it's size. The method used to secure data and create fault tolerance is to store data redundantly throughout the server farm across physical data center locations you utilize. They have to have redundancy, because servers can experience hardware failure and at their scale (thousands of servers) hardware failure is a daily occurrence. This means they would be constantly losing data.

You are clearly too stupid to use common sense, understand the law or how any related technology works.

Re: Re: Re: Re: Re: Re: Re: Re:

This is no different in many ways from the Tenenbaum or Thomas cases of copyright infringement. While there were in fact MANY infringements, they cases were argued on only a few. There is no need to drag each and every item of data from the Megaupload servers into court for examination. You only need a very, very small sample in order to show that violations did exist, and you only need a few to show the disabling of links but failing to disable the files that were linked via multiple URLs.

Further, you have to remember: The case really hinged only very slightly on the infringement side, and more to do with the sales of access to it, and the commissions paid to third party companies (also owned by Kim) which constitutes the significant money laundering activities.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Further, you have to remember: The case really hinged only very slightly on the infringement side, and more to do with the sales of access to it, and the commissions paid to third party companies (also owned by Kim) which constitutes the significant money laundering activities.

If the material isn't infringing, then there is nothing unlawful with providing "sales of access to it."

Also, they are only accused of money laundering because that money allegedly came from criminal copyright infringement. If the money didn't come directly from infringement - or even if the infringement wasn't criminal - then they cannot be charged with money laundering, either.

So, "the infringement side" is really the only side that matters. If the government can't prove criminal infringement, they have to drop all charges.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

"If the material isn't infringing, then there is nothing unlawful with providing "sales of access to it.""

Karl, you missed the point. They don't have to prove that all of the material is infringing, only that there was infringing material, that access was being sold, and so on. They don't have to go through 25PB to prove each and every item in infringing.

The point is that the infringement is the basic crime, but the big part of it is how the money was moved from the corrupt enterprise to third party companies to "clean" it.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Because he's already decided they're guilty and should be destroyed. A fair trial would risk both Megaupload being for not guilty, and the details of the verdict being used to set precedent for future trials. He'll be pushed closer to having to accept reality, something he's very scared of.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

They don't have to prove that all of the material is infringing, only that there was infringing material, that access was being sold, and so on.

They have to prove more than just that infringing material existed, and that access to it was being sold. Lots of companies have allow you to pay more for higher speeds, lack of ads, etc, and I'm sure there is infringing material on all of them. That doesn't make them "criminal enterprises."

The government has to show, beyond a reasonable doubt, that the direct infringement (by the users) was criminal infringement; and that the arrested Megaupload employees were conspiring with those users in that criminal infringement.

The point is that the infringement is the basic crime, but the big part of it is how the money was moved from the corrupt enterprise to third party companies to "clean" it.

You're presupposing there was a "corrupt enterprise" in the first place.

That was my point. If the criminal copyright infringement charges cannot be proven, then the charges related to money laundering completely vanish.

Honestly, the racketeering and money laundering charges are the most ridiculous, in my opinion. They stem from nothing more than their rewards program, and the fact that Megaupload paid for hosting. That this would be seen as "money laundering" is ludicrous.

Re: Re: Re: Re: Re: Re: Re:

To answer your question about having to turn on all servers. Lets say they bring up the right combination of servers to get full working access to the entirety of the data, but do not turn on everything. What stops prosecutors from saying the other servers had different data? Do you think federal prosecutors, judges and juries understand the technology behind Megauploads architecture?

The reason you need ALL of the servers, is because ALL servers have data on them. It may not be unique data, but good luck proving it if it gets destroyed.

Re: Re: Re: Re: Re:

Hey guys! 15 petabytes is a WHOLE LOT of data to back up. One petabyte is a million gigabytes. To back up all this data using one-terabyte drives would require 15,000 drives and probably about 700 mega-servers. That's a bit more than backing up your 500 GB hard drive, you think?

Re: Re: Re:

No, they should have a backup that isn't in a datacenter somewhere - or that isn't part of their active server farm. Essentially, there should be a backup and could recreate the site even if every server they had was flooded or struck by lightning. It's a good business procedure.

They subcontracted that part of their business out to Carpathia. I'm sure that Carpathia has a multi-redundant multi-site storage system that is quite adequate for any normal situation (such as the bones you mention) - but the government has seized ALL of it.

Re: Re: Re: Re:

Actually, the seizure itself it's the issue - it's that it is rented. If they were making backups in that fashion, then they backups are also just "rented". If it's just to preserve user data, I am sure a low cost "offline" option for retaining the backups could be arranged. But Mega wants to buy out the servers it was previously renting (why didn't they buy them before?). That makes no sense.

Re: Re: Re: Re: Re:

You want everyone to own their own servers to do anything on the internet as a business? Cough up the millions you apparently think everyone has, then, you owe me money for using our servers. Servers are expensive to outright purchase, and datacenters renting out their space to other businesses is a perfectly sensible business, just like renting out office space to businesses.

Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re:

YOu wish. I understand very well. I am only pointing out that it seems weird that Mega wants to go from renting all these servers to suddenly buying them. WOuldn't they want to petition the courts for enough money to have the hosting company decomission the servers from the racks and then store them in a non-data center location, paying only the rent there instead of expensive rack space?

Re:

It's obvious your new to the whole technology thing, so let me help you understand one of the small but very important facts here. Carpathia is holding on to 25 PETAbytes of data. Since you're clueless, here's a rough idea of some equivalents:

Re:

Wrong wrong wrong.

When you have dealt with Digital evidence and understand how preservation of original evidence has to occur to allow authenticity you would understand how absolutely ridiculous your statement is that a backup, unless that backup is a 1:1 bit copy of ALL data including memory at the time, is able to be presented to any court as the same data. It would not be admissible and shouldn't be since it's reliability is in absolute question.

Don't feel bad, even Solicitors/attorneys get confused with site backups unless they have really dealt with all the quirks of digital evidence before.

Re:

How?? The orders from the feds to the hosting facility are clear as day. Whether the intent behind the orders was innocent or not, the act is a mistake on multiple levels. Calling them out on it is the least they should do to ensure they can have a level playing field in court.

Re:

Megaupload via it's legal councel is Not the only one that will be accusing them, every court in New Zeland and the Western world will.

This situation is sending major ripples through Digital Forensic services everywhere. The USG is on very very shaky ground and they are damned if they do anything other than full preservation of all evidence until at such time that all legal criminal actions are completed. That includes any appeals.

Otherwise, a LOT of people will start destroying evidence in other criminal cases that will affect other , MAJOR criminal cases, like murder, fraud, terrorism - the list is huge.

The collection, Preservation, and documentation of Digital Evidence is paramount and without a reliable and authentic copy to go back to (and you NEVER use the original as an analysis bed) the reconstruction of that evidence is suspect placing a taint on any presentation of it into a court.

Also being a criminal case the Prosecution has to prove everything, and the defence has to have access to EVERYTHING that the prosecution has, knows of, and if anything is deleted by intent then not only should the defence ask for and be granted an absolute acquittal, with prejudice, the prosecution and all those of knowledge of the evidence destruction need to be criminally charged as well.

Though somehow I doubt that Extradition of DOJ personel will occur, but hey NZ is part of Interpol, Warrants an be placed for arrests, those individuals can stay in the USA for ever if they want. Just don't attempt to leave.

Why am I so intense with this matter over the evidence? Because this is what I do for a living and the DoJ stating they are going to delete this type of evidence because it is too big (What a load of crap), they have what they want (rules of evidence do not work like that), yada bullshit yada, is going to fuck up for years to come cases that do not need this type of political bullshit tampering of international evidence standards.

Wait until the first child molester, terrorist, or major fraudster gets off because of the chilling effect this could initiate.

retention of MegaUpload servers

The issue here is not immediately whether MegaUpload could've, would've, or should've been using alternative backup servers outside the reach of U.S. prosecuters.

The issue is whether an American Federal prosecutor can constitutionally process a criminal indictment to conclusion in which that prosecutor is complicit in the selective destruction of exculpatory evidence within the reach of his control and custody.

Guilty verdict? Guaranteed! But that's not constitutional Due Process. Why? Under Due Process the responsibility for preserving confiscated evidence and maintaining a legal chain of custody falls on the prosecuting and police authority who can control that evidence and not the accused who has been dispossesed.

The real disgrace here, is that in America today (in regards to copyright law) it can be considered unremarkable for the DOJ to move its criminal caseload through the Federal Courts as a militant political partisan against any and all counterparties of corporate copyright holders to
include willful disregard and violation of the constitutional and civl liberties of average citizens.

It would seem that clear standards of Prosecutorial discretion would inform ANY federal criminal prosecutor that the provision of due process to the accused is the FIRST priority, even ahead of achieving a guilty verdict.

If these priorities have become so unclear, then we must all be in mortal terror of our civil and criminal prosecutors. Why? Because that procecutor can show up at any of our doors and the fact that we are innocent will be no excuse.

Re: retention of MegaUpload servers

"The issue is whether an American Federal prosecutor can constitutionally process a criminal indictment to conclusion in which that prosecutor is complicit in the selective destruction of exculpatory evidence within the reach of his control and custody. "

As an example, seizing a pot growing operating does not require the government to keep feeding the plants to maturity while waiting for a guilty verdict. In fact, the evidence is often cataloged, checked, and a representative sample retained, and the rest destroyed.

There is nothing here that mandates the government to keep the servers up, and clearly with Mega locked in a legal battle, nobody is stepping up with $3 million a year to keep servers powered up. That just isn't going to happen.

The lack of backups by Megaupload is a real issue here - clearly, the company did not value their customer's data very highly. They were clearly not prepared for natural disasters or other system wide failures.

Re: Re: retention of MegaUpload servers

"As an example, seizing a pot growing operating"

But this involves data not plant life. The plants are just that plants, they are biologically similar to each other and small samples work.

Data are just 0's & 1's but it is the arrangement of those pieces that create each file. Each and every file is unique, and when making vast claims about what is or is not infringing, as has already been done, the door is opened to have to prove those statements. A small sample of the 25 Pentabytes of data do not reveal anything, other than facts about each sample. They can not tell you anything about anything else stored on the servers. A sample of a pot plant shows it was a pot plant. It is pretty much grounded science that pot plants do not suddenly become another type of plant.

Nice try comparing apples to bits, ignoring the servers could be outright purchased and held for just over $1 million, and your belief that Mega had to hold backups in the traditional sense.

Re: Re: Re: retention of MegaUpload servers

Re: Re: Re: retention of MegaUpload servers

But this involves data not plant life.

Yep as usual a non-relevant analogy that even in its non-relavance manages to totally miss the point. If one really wanted to go with the Pot analogy, it would have to be:
"Imagine finding some marajuana plants in a garden centre of thousands of plants, picking out a few and burning every other plant (possibly including more hash plants) then claiming every plant in the centre was the same."

Re: Re: retention of MegaUpload servers

"As an example, seizing a pot growing operating does not require the government to keep feeding the plants to maturity while waiting for a guilty verdict. In fact, the evidence is often cataloged, checked, and a representative sample retained, and the rest destroyed."

unfortunately your example doesn't hold. While taking a snapshot and a sample of pot, and recording simple data such as "how much is there" is enough evidence for both the defense and offense, the minute details such as the plant's health is irrelevant to the case. In the case of these servers of data the important details are in the minute. Taking a snapshot of the physical servers and a "sample" of the data is not enough. What is happening here is that the data, as a whole, is relavent evidence. So, in this case deleting the data on the servers is not like throwing out the irrelevant pot plants, but rather looking at the pot growing operation, torching the place down and then claim that their was a pot growing operation there based on your word.

"nobody is stepping up with $3 million a year to keep servers powered up. That just isn't going to happen."

Re: Re: Re: retention of MegaUpload servers

"nobody is stepping up with $3 million a year to keep servers powered up. That just isn't going to happen."

Interestingly under Preservation of Evidence guidelines and court protocols worldwide No-one is ALLOWED to step up other than the governmental authority (prosecutors) and they MUST (not may) preserve the evidence fully at their expense not the expense of the defendant.

This is a criminal case, not a civil one where the burden is placed on both for depositions, storage, etc.

Re: Re: Re: Re: Re: retention of MegaUpload servers

Re: Re: Re: Re: retention of MegaUpload servers

Thompson, you have to realize that the government has already collected their evidence from the "rented" servers, and just like a hotel room used for a crime, is returning them back to their owners. There is no reason to punish the hosting company for their customer's bad choices.

The government isn't forced to preserve the hotel room, or a rental car, or any thing else of that manner if the evidence can be collected and removed, which is what they did.

No, the evidence isn't every scrap of user data - but why should it be? By your logic, a shooting in a hotel room should shut the entire hotel down, perhaps the whole city block, until the case has been heard, the defendant found guilty, appeals launched, and so on for 20 years or so until it makes it to the supreme court. That just isn't in line with legal reality.

The governement inspected the servers, collected the evidence, and is releasing the servers back to the hosting company to do what they want with - providing they reformat the drives and remove any other data related to Mega.

Re: Re: Re: Re: Re: retention of MegaUpload servers

Because what we are saying is that Mega's data is valuable evidence. And yes an entire hotel could be cordoned off in order to gather the nessasary evidence to ensure a fair trial. So, yes we think the data is important, is that so hard to understand?

And, yes, the hosting server should not be the one to suffer, that is the prosecutors job, the government, since this is a criminal trial. The problem is that the government isn't doing their job. By "not doing their job" I mean they are destroying valuable evidence and causing massive fiscal damage to an innocent hosting service, and no, telling them to delete all the data doesn't work either.

Re: Re: Re: Re: Re: retention of MegaUpload servers

Heres a clue. Click on my profile link, read what I actually do for a living.

Notice that I actually might know what I am talking about in reference to Digital Evidence that is not going to in any way degrade, nor is it part of needed infrastructure for private/public use (ie: Crime scene).

Re: Re: Re: Re: Re: Re: retention of MegaUpload servers

It seems that everyone around here (other than a select intelligent frfew) seem to think in some way that the actual "Rented" servers are what is evidence..

They aren't, it is what is on them.

And believe me when I say if the US Government has ONLY cherry picked data off the originating servers and has not made an exact 1:1 bit copy of the original data as a reliable reference point, then the data they are thinking to use is not only tainted but cannot be accepted in ANY court anywhere in the world under current evidence rules because it is not authentic in any way whatsoever.

Re: Re: Re: Re: Re: retention of MegaUpload servers

Thompson, you have to realize that the government has already collected their evidence from the "rented" servers, and just like a hotel room used for a crime, is returning them back to their owners.

It is you that is not understanding some important concepts here. Data CANNOT be cherry-picked for a representative sample. It simply doesn't work that way. Every single byte of data is or could be relevant. That's why forensic experts never, ever do anything with the original copies of data.

It's like the government ran across a briefcase in your hotel analogy and picked 3 papers from 100 in it and destroyed the rest of them. Perhaps one of those 97 destroyed papers destroyed was the medical marijuana certificate that proved the pot growing in the hotel room was legal.

Re: Re: retention of MegaUpload servers

Re: Re: retention of MegaUpload servers

The lack of backups by Megaupload is a real issue here - clearly, the company did not value their customer's data very highly. They were clearly not prepared for natural disasters or other system wide failures.

They factored that responsibility out to Carpathia. Your comment is defamatory of Carpathia.

Re: Re: retention of MegaUpload servers

As an example, seizing a pot growing operating does not require the government to keep feeding the plants to maturity while waiting for a guilty verdict. In fact, the evidence is often cataloged, checked, and a representative sample retained, and the rest destroyed.

The correct analogy here would be a large nursery growing a variety of plants on behalf of customers. The government waltzes in and determines that amongst millions of plant there are two or three pot plants. It then decides to let all the plants die- without even determining what kind of plants they are or who owns them!

Re: Re: retention of MegaUpload servers

> As an example, seizing a pot growing operating
> does not require the government to keep feeding
> the plants to maturity while waiting for a
> guilty verdict. In fact, the evidence is often
> cataloged, checked, and a representative sample
> retained, and the rest destroyed.

The crucial difference is that in one case, the evidence is a bunch of plants and in the other, it's data.

Exculpatory evidence is unlikely to be found in a bushel of marijuana. The plants are fungible-- one is identical to the other for evidentiary purposes.

Data is not fungible and merely selecting a "representative sample" for prosecution does not work, because each bit of data is different from all the others and each bit proves different things.

So by allowing the rest of the data to be destroyed, it's depriving the defendant of the possibility of securing and introducing exculpatory evidence on its behalf, and by doing deprives the defendant of due process.

Re: retention of MegaUpload servers

Guilty verdict? Guaranteed! But that's not constitutional Due Process. Why? Under Due Process the responsibility for preserving confiscated evidence and maintaining a legal chain of custody falls on the prosecuting and police authority who can control that evidence and not the accused who has been dispossesed.

How is a guilty verdict guaranteed? Wouldn't allowing the data to be wiped amount to evidence tampering? As far as I know, evidence tampering is ground for dismissal of all charges.

Re: retention of MegaUpload servers

Finally someone sharp enough to know this is not about how Megaupload kept its backups. Rather, it is about the legality of what the government is trying to do to win its case.

Megaupload is certainly not my favorite company, but they do have the right to due process unless you want to include NDAA, which relinquishes the American public's right to due process. That notwithstanding, Megaupload deserves a FAIR trial!! And would somebody do something about that ancient bastard Rupert Murdoch interfering in this shit?

The US government is at best extremely misguided in their handling of this case, and at worst, behaving like a gang of criminal thugs.

It's almost like they're trying to destroy the reputation of the US justice system. And for what? Because people can copy files that they shouldn't? So we'll destroy people's livelihoods ans businesses over it? Utterly pathetic...

Mega has the balls to be trying to preserve it's entire network, that is to have servers at both Carpathia AND Leaseweb "saved". Yet, these were at best mirror sites of each other, and as such, only one would really need to be normally retained.

Second of all, they are asking effectively to be allowed to peruse all the data on their servers looking for data to build their defense. Yet, their general business claim is that the data is customer data and not their own. As such, out of the 25 petabytes of information, how much is truly business data related to Mega, and how much is private data that they should not be looking at?

Third, Mega's recent announcement of the number of "government" accounts on their service makes it clear that they are willing to use private information to try to win a public media war in this case. They clearly don't have a firm grasp between customer data and their own business data.

(Side note on the government addresses, it appears that most of them are in fact service men and women passing pictures and such home from the field... I have not seen anything that suggests that people in government offices were using Mega).

It also appears that what Mega is attempting to do is to use it's ill gotten gains (the 60 million cash, 100 million total assets) to fund it's own defense. If this first step is permitted, they will be back to beg for more of their money to fund their defense, which pretty much goes against every legal standard going. They money is part of the conspiracy, and should not be used to fund the defense of the individuals involved.

Kim Dotcom is getting nearly 50k a month to live while this is going on. Fatso can give up a few meals and perhaps work out a financing deal to have the servers moved to a "non-data center" location and stored at his expense, under government lock and key. There is no reason for the disputed money to be used to pay his bills or for his defense.

Remember: The argument isn't being made to protect user data - it's being made to help Mega present a defense. It's sick.

Re: Re:

Can you explain how access to user data would help their defense? It would seem more like a fishing expedition to try to find files / users related to the government to try to embarrass the DoJ into stopping prosecution.

Mega does not explain in any fashion in their filing HOW access to user data would help their defense.

Re: Re: Re: Re:

That could clearly be accomplished without all of the data. It's also really not that relevant to the charges, more of a red herring. The question isn't if there was legal user data (there was certainly some), but rather how they treated the violating material, how they charged for access, and how they flowed those ill gotten gains to other companies to launder the cash.

Seeing that Kim Dotcom was able to produce exact and detailed information regarding "government" accounts, I think they have kept pretty good track of everything and have those records - unless of course Kim was talking out of his ass the other day. Which is it?

Re: Re: Re: Re: Re:

I can imagine MU lawyers presenting a crystal ball in a foggy and mystic environment clearly saying that 99% of the files are legal and the court will obviously accept it.

Ahem. Ironies aside, it's clearly to me that 100% of the files are legal. It is common for file lockers to have multiple links pointing at the same file to save space. If 1 of the users with a link to the file has the rights to use that file then it is not infringing.

I'm not sure if you have done that before but I do it all the time. Since I'm lazy to go and convert my stuff to digital format I download from TPB. I could have used MU and that file would be legal for me even though it's infringing for another person.

Thinking again, it's obvious all MU files are legal so there's no case.

Re:

"Second of all, they are asking effectively to be allowed to peruse all the data on their servers looking for data to build their defense. "

As is their right. The government gets to pick and choose whatever data it wants from the entire record and Mega gets to do the same. It's called compulsory process.

Your first and third arguments are baseless speculation and ad hom respectively. You then go on to pretend that they're already guilty with loaded language like 'ill gotten gains,' 'beg,' and 'conspiracy.' Then move on to direct insults like 'fatso' and 'give up a few meals.'

The accused is entitled to present a defense. That you think it sickening they are allowed to do so says all we need to know about you.

Re:

Again you miss an important word.

ALLEGED.

Because they have an indictment means nothing, it is a one sided story told to people who are just going through the motions.

Mega wants to use the assets of the corporation to defend the corporation... yes that is a HORRIBLE thing. Heaven forbid they be allowed to mount a defense to a case that still is not happening. There has been zero testimony, the accused aren't even in the loving arms of the DoJ yet.

The money being dished out to Dotcom is to maintain his residence for himself and family. If he tried to use it for anything else he'd be back in jail for violating a court order. But bonus points for calling him fat and pretending that its just him being a cow that is keeping this from happening.

Carpathia offered to sell the servers for $1 million to Mega. The court could use Mega's seized assets to purchase the servers, this doesn't suddenly give Mega extra money and means if they actually manage to lose this joke of a case the servers could be auctioned off to help their alleged victims.

The argument is to protect user data and help Mega's defense, they can run the same path. The EFF would love to be able to return the users data, but the only people who could write the interface are currently banned from computer use and internet access.

I sure hope that DoJ rummaging on the Mega servers didn't accidentally touch on an EU residents files. Trolling through the personal files of people is a big nono, despite the US Government feeling they have the right to spy on everyone.

What's sick is the DoJ is now on record saying Child Porn isn't worth investigating or prosecuting, and fabricated stories of wrongdoing are.

I guess former BSA lawyers hold the rights of corporations in higher regard than the health and safety of children being abused.

Oh and little Suzy still doesn't understand why UMG is keeping her from seeing the video of Daddy saying he loved her. She cried so hard when they came and knocked on the door to bring the bad news, but at least she was able to watch the video... until the MPAA decided it might be infringing.

Re: Re:

"Mega wants to use the assets of the corporation to defend the corporation... yes that is a HORRIBLE thing."

Actually, Mega wants to use the disputed ill gotten gains to protect itself. It's like letting a drug deal move the shipment they got stopped with so they can afford a better lawyer.

"The money being dished out to Dotcom is to maintain his residence for himself and family. If he tried to use it for anything else he'd be back in jail for violating a court order. But bonus points for calling him fat and pretending that its just him being a cow that is keeping this from happening."

50k a month. I would say that he certainly isn't going to be skipping any meals.

"Carpathia offered to sell the servers for $1 million to Mega. "

1.5 million, read the documents. Again, that would be 1.5 million of disputed money. Would you allow a drug dealers seized assets to pay the lease on his 'Slade with the twanky deuces on it?

"The argument is to protect user data and help Mega's defense"

No, the argument is entirely about Mega's defense (read the document) and the protection of user data is at best a secondary concern. If anything, they seem to be making a call to save user data only because they might be able to help their defense. Further, they are unable to explain why they feel the need to save two mirrored data centers worth of stuff. It seems odd.

"What's sick is the DoJ is now on record saying Child Porn isn't worth investigating or prosecuting, and fabricated stories of wrongdoing are."

Show me the quote please. How did we get to child porn all of a sudden?

"little Suzy still doesn't understand why UMG is keeping her from seeing the video of Daddy saying he loved her."

One say little suzy will grow up to understand that her father was a cheap bastard, willing to risk an important video by storing it with a company that cared so much about user's data that they didn't even bother to have a backup.

I love your attempts to move the argument somewhere else. Too bad you have absolute nothing to back up your allegations.

While arguing the court doesn't have jurisdiction over the servers, and the Carpathia is free to wipe them.
If they actually thought there was CP on the servers, this is them saying we don't care about helping the abused children in video/pictures and we refuse to investigate.

No I would expect the Government to hold the Escalade if it contained evidence of the wrong doing. If there was evidence inside that could be disputed by battling experts, one would expect they would both have a chance.

2 mirrored data centers allows them to call into question if the files allegedly pulled from the Carpathia cluster existed on both or just 1 that the Feds had access to.

Little Suzys dad was using Mega to transfer files home from the front lines, where the connection isn't that good. Mega offered a reliable way to transfer things home.

Actually I've backed up my allegations without moving on to character assassination of the accused like you have.
The character of the Judge hearing the case brought by the EFF has a history of siding with the Government supporting questionable legal maneuvers.
The character of the Attorney who brought the case is in question as his last position was with the BSA, that uses extortion-like tactics in their business model and has their own rules for deciding your a software pirate.

Mega does not need to explain all of their motives, the case is not moving forward yet. The accused have yet to hear and answer all of the charges against them in a courtroom.

Re: Re: Re: Re: Re:

Well, no, because MegaUpload has had civil cases filed against them from US companies multiple times, and has been willing to face those charges in US courts. The only difference here is that it is a criminal case, and Mega isn't being allowed fair due process... But I guess you'll just ignore this, just like the last comment I proved you wrong... oh well :P

Re: Re: Re: Re: Re: Re: Re:

As much as Mega flaunted in the face of the law or if they are in fact guilty, for now they are accused, but innocent, until the prosecutors (the government) prove them otherwise. So for now lets assume they are innocent. Would you set up an innocent man in a trial where only the prosecutors are allowed to use evidence involved in the case, while the innocent man is allowed to use nothing other than his word, not even his own money? As much as I know you "know" Mega is guilty, they must still be given a fair trial.

Also, I really am curious about what you meant in the older posts: Mega's backups, should they or shouldn't have they used a data center to back up their servers? Though that's kinda what they were paying Carpathia for anyway.

Re: Re: Re: Re: Re:

Julian Assange has done what exactly?
Tread carefully, because they tried so very hard to indict him on something even if they had to bend the definition used in the laws but there wasn't anything. The case against Assange boils down to he made us look stupid get him.

Being in another country usually means your held to the laws of those countries, up until the US decides they own that too.

Re: Re: Re: Re: Re: Re:

So if I claim I believe that X has CP on his harddrive and he is involved in another criminal conspiracy then he needs to be convicted for the criminal conspiracy but the court needs to destroy the evidence because of the CP and shouldn't look any farther at the evidence and convict X on my word.

Re: Re: Re: little Suzy's dad

""little Suzy still doesn't understand why UMG is keeping her from seeing the video of Daddy saying he loved her."

One say little suzy will grow up to understand that her father was a cheap bastard, willing to risk an important video by storing it with a company that cared so much about user's data that they didn't even bother to have a backup."

Little Suzy's dad is probably an infantry soldier trying to support a family back home on whatever our cheap government pays him, probably not much. We all can't exactly afford to send DVDs via FedEx, and our government doesn't offer any affordable service to our soldiers, Mega did.

Suzy's dad is fighting for democracy, you're fighting for a corrupt and greedy corporation. You should be ashamed.

Re:

Mega has the balls to be trying to preserve it's entire network, that is to have servers at both Carpathia AND Leaseweb "saved". Yet, these were at best mirror sites of each other, and as such, only one would really need to be normally retained.

Mirror sites don't mean diddly-squat in regards to Evidence. Mirror sites are classified as separate evidence repositories that are DIFFERENT to each other and therefore are separate peices of evidence that need to be separately preserved.

Second of all, they are asking effectively to be allowed to peruse all the data on their servers looking for data to build their defense. Yet, their general business claim is that the data is customer data and not their own. As such, out of the 25 petabytes of information, how much is truly business data related to Mega, and how much is private data that they should not be looking at?

No their lawyers are asking, Megaupload don't look through that, they can guide, but that is it. The defence would have outside unbiased Forensic experts doing that (in fact I know they do). Whether the data is private or not is irrelevant to anything at all.

Third, Mega's recent announcement of the number of "government" accounts on their service makes it clear that they are willing to use private information to try to win a public media war in this case. They clearly don't have a firm grasp between customer data and their own business data.

This is Irrelevant to anything to do with the discussion about preservation of evidence. You clearly do not have a firm grasp of what is and is not pertinent to anything.

It also appears that what Mega is attempting to do is to use it's ill gotten gains (the 60 million cash, 100 million total assets) to fund it's own defense. If this first step is permitted, they will be back to beg for more of their money to fund their defense, which pretty much goes against every legal standard going. They money is part of the conspiracy, and should not be used to fund the defense of the individuals involved.

Do you know what alleged means? or are you too stuck on irrelevant matters that you believe propaganda from everywhere? Though I see you said the majic tinfoil hat comment of Conspiracy.

There is a new phrase floating around the law blogs at the moment "FUNKSHUNEL ILLITERIT" It can be found on a new legal satire blog about a weird woman (and no I AM NOT comparing you to her - she's a friggen loon). You might like to read the text (under the heading.. down a bit) and find out what Conspiracy's are.

But go ahead, keep thinking you know all about what the "evil" Kim is doing and why the Heroic US Government is saving the Internet and all Humans from the bad people.

Remember: The argument isn't being made to protect user data - it's being made to help Mega present a defense. It's sick.

Re:

It also appears that what Mega is attempting to do is to use it's ill gotten gains (the 60 million cash, 100 million total assets) to fund it's own defense.

So I assume that the principle of "innocent until proven guilty" no longer applies?

If this first step is permitted, they will be back to beg for more of their money to fund their defense, which pretty much goes against every legal standard going. They money is part of the conspiracy, and should not be used to fund the defense of the individuals involved.

Let me see if I understand this concept of 'justice'; First step is to confiscate everything the alleged criminal owns, and reduce him to poverty so as to ensure that he can't pay for a decent lawyer or for the expert witnesses he needs to defend himself. Then once he's forced to use a public defender, since he can't afford anyone better, you throw the full weight of the US government against him with virtually unlimited funds for lawyers and expert witnesses to support their side of the story. Oh, and you also make sure to destroy the evidence so that all that remains is what they're cherry-picked to support their argument

Have I got it about right?

Remember: The argument isn't being made to protect user data - it's being made to help Mega present a defense. It's sick.

Right because if the government accused them of a crime, they must be guilty. In fact, why are we even bothering with a trial? Let's just lock them up now. Think how much time and money the government can save without having to go through annoying procedures like actually proving someone is guilty! They can just accuse them and then lock them up! I mean it works so well for countries like North Korea and China. Thanks, you've just revolutionized the legal system and I'm sure we'll all be much better off because of it!

Re: Re:

"So I assume that the principle of "innocent until proven guilty" no longer applies?"

No, this is pretty standard. Monies obtained by an alleged crime are generally not made available to fund a defense. It's not innocent until proven guilty, it is that this money is EXACTLY at the center of the criminal charges.

We generally don't allow drug dealers to use their seized funds to pay for their defense either.

"Let me see if I understand this concept of 'justice'; First step is to confiscate everything the alleged criminal owns, and reduce him to poverty so as to ensure that he can't pay for a decent lawyer or for the expert witnesses he needs to defend himself. "

No, you got that wrong. The idea is to seize what appears to be the ill gotten gains, and require that the defendant prove that they are in fact not ill gotten gains. See the above drug dealer example, we do not allow the dealers to retain the stacks of cash found in their possession while the trial is ongoing.

"Right because if the government accused them of a crime, they must be guilty. In fact, why are we even bothering with a trial?"

Does not compute. They are innocent until proven guilty, but the laws allow for the proceeds of a alleged criminal operation to be locked down until the case is completed. The DoJ made a good enough case to get an indictment and to move forward with it, and under US law, that is enough.

The rest of you rant is just a rant. With 50k a month, plus any other assets that he has (and Kim has plenty, he has scammed his way to millions before), he can easily mount his defense.

He certainly isn't impoverished... I could do well on 50k a month, I don't know about you.

Re: Re: Re:

"Monies obtained by an alleged crime are generally not made available to fund a defense. It's not innocent until proven guilty, it is that this money is EXACTLY at the center of the criminal charges."

Can you provide a link to the forensic accountant's report that details how every single dollar Kim Dotcom and MegaUpload had, and now don't have, was "obtained by an alleged crime"? There is one right? How else could such a strong claim be made?

Seriously, MU critics like to claim, without evidence, that most of the content was illegal, but if that's true when why do they lose all their money and assets? Why don't they keep a proportion of the assets equivalent to the proportion of legitimate content? It could be tens of millions of dollars. Oh right, doing that would require the USG to actually know how much was legit and how much wasn't. The truth is they haven't got a clue, they're just blindly following the content industries' unsubstantiated claims.

"See the above drug dealer example..."

It's pretty obvious from your repeated drug dealer analogies that you consider copyright infringement equal in seriousness to drug crime. This clearly paints you as a copyright maximilist with rather extreme views. This is where you depart from most of sane society. Anybody died from copyright infringement lately?

"With 50k a month, plus any other assets that he has (and Kim has plenty, he has scammed his way to millions before), he can easily mount his defense."

The FBI failed utterly to prove these hidden assets exist, but you know better right? Who are you again? Why should we believe a word you say?

Re: Re: Re: Re:

"Can you provide a link to the forensic accountant's report that details how every single dollar Kim Dotcom and MegaUpload had, and now don't have, was "obtained by an alleged crime"? "

Actually, the law of the US pretty much requires them to prove that it is not. Yes, it smacks of innocent until proven guilty, but in general terms, it makes sense. If you have legit sources of income, you should be able to show them easily, and prove that at least part of the money is legit. You don't see Kim doing this, which is a clear indication that the money (and assets) are all as a direct result of the corrupt enterprise.

I use the drug dealer examples because they are the clearest and most simple thing to explain to people. You sell an illegal product, and the money you make off of it gets seized when you get arrested - along with anything you bought with the proceeds of that activity.

I am not drawing any conclusions as to the relative seriousness of the crimes. I am only saying that the process for seizing money and goods is similar in both situations.

The implication of equality is all in your mind. Feeling a little guilty about something?

Re: Re: Re: Re: Re:

"If you have legit sources of income, you should be able to show them easily, and prove that at least part of the money is legit. You don't see Kim doing this, which is a clear indication that the money (and assets) are all as a direct result of the corrupt enterprise."

Dotcom can quite easily point to his legitimate source of income: MegaUpload. No court of law has ever proven it to be illegal. In fact several civil cases have failed to do just that. And if you want proof that at least part of the income was legit beyond a doubt, look at all the people lining up to regain access to their personal files that the government has taken from them.

Re: Re: Re: Re: Re:

Actually, the law of the US pretty much requires them to prove that it is not.

Ahh, now it becomes clear; You're applying the rules for drug-related asset seizures to this case.

You do realize that asset seizure is one of the most abused laws in history, right? Since it was declared legal, police across the country have been using it to seize tons of stuff from all sorts of people without ever even charging them with crimes. It's become so common that many/most police organizations regard it as a normal part of their budget. Not to mention that the police will attempt to seize property on the flimsiest of excuses.

If you have legit sources of income, you should be able to show them easily, and prove that at least part of the money is legit.

Right...

Like the case of the guy who had cash seized from him and the judge ruled that a paycheck in the exact amount of the cash he had, wasn't evidence enough that it was obtained legally?

It has been well documented that a large percentage of seized property is never returned. Not because the owners were actually guilty of any crimes, but because the government makes it virtually impossible to prove that the property wasn't obtained illegally.

See here's the part that I'm sure you'll deny and claim that I'm just paranoid;

Getting seized property back isn't like going to trial and proving guilt beyond a reasonable doubt, it's trying to convince a judge who has already made up their mind that your property is guilty. Since law enforcement will get to keep, auction off and profit from the property that they seize, there's a large incentive not to return it. To this end, the police will tell the judge whatever he wants to hear to convince him not to return it. And since the rule is guilty until proven innocent, most attempts to get seized property back fail.

It's literally legalized stealing. The police/government gets to take a person's property without ever even proving their guilt, and it's virtually impossible for a wrongly accused person to get it back.

Do a Google search for asset seizure abuses, they've been well documented.

Re: Re: Re:

"No, you got that wrong. The idea is to seize what appears to be the ill gotten gains, and require that the defendant prove that they are in fact not ill gotten gains"

Except they flipped out when one of the defendants had more money than they expected in the bank, and were AMAZED he had invested the money and gotten decent returns.
The Government made all sorts of claims, and all of them have been proven to be false. They will run, they will use a helicopter and launch the warheads, the have bombs, they have a button that will delete all of the servers, and so on and so on.

Re: Re: Re:

The idea is to seize what appears to be the ill gotten gains, and require that the defendant prove that they are in fact not ill gotten gains.

Which they can't do, if the government allows data to be destroyed.

I'm betting that Megaupload is going to argue that a significant amount of their income was not the direct proceeds of criminal copyright infringement. Especially in light of the money laundering charges.

To do that, they need to present evidence that is on the servers... evidence that the government won't allow them to access, and is recommending be destroyed.

Re: Re: Re:

No, this is pretty standard. Monies obtained by an alleged crime are generally not made available to fund a defense. It's not innocent until proven guilty, it is that this money is EXACTLY at the center of the criminal charges.

Let's say that they arrest someone for selling counterfeit DVDs. Do they also seize that person's bank accounts? Their home? Their car?

Re:

Cant wait until the gov comes after you! Which side will you be on then? Dumb fucks like you give the government more and more power to do what they want, they you cry like little bitches when they hit YOU!

but...

Having been notified that the Government had released the data for destruction would have been to get a letter from Carpathia stating on whose orders it had come.

Let the case flow for a little while and if I saw that I had no chance of victory, BAM! present that evidence as breaking, and mistrial the whole thing. Sure, it doesn't award damages, but it throws a big stinking egg in the Government's face

Re: but...

The point is the government isn't ordering the destruction, they are saying "we don't need 25 PBs of user data, we got our sample that shows the infringing material, and the other things we need to make our case. You, the hosting company, are free to do whatever you want. We have preserved the data we need to make our case".

The hosting company is the one that will ultimately decide if they want to keep the power turned on to the servers, if they want to store the servers elsewhere awaiting payment, or if they are going to move forward to re-purpose the leased equipment to keep their businesses going.

It's not the government's fault that Mega had no backups of their "precious" customer data.

Re: Re: but...

You do understand they could have had backups of the data across the servers in the farm right?

Or are you just going to keep pretending this is the same as someone plugging in an external drive and keeping stuff safe?

Nice distraction from the Government having unfettered access to the seized servers, and getting to crawl through them looking for the data planted there. That the Government still can't tell you how many files where stored on Mega's servers or what percentage was ACTUALLY infringing, only what is alleged to be infringing according the the **AA's. The same **AA's who lied in court documents about infringing material, and are still trusted as the arbitrator of what is or is not infringing. Even they can't tell...

It is the Governments fault for seizing the "evidence" and thinking they can dump all but the few pieces they wanted.

Re: Re: Re: but...

Backups "across the farm" are not really backups, as they don't protect against facility failures, power failures, floods, or even the introduction of worms or viruses into the network.

"Or are you just going to keep pretending this is the same as someone plugging in an external drive and keeping stuff safe?"

No, network backups are not the easiest thing to do, but they can be done. Remember, you don't have to back up all the data in a single shot, you can do it once and then have incremental backups for periods between larger backups, essentially recording only changes. There are plenty of options, and for a company that was clearly the sort of money alleged in the indictment, they could easily afford to do if they were trying to protect user data for real.

There is no indication that Mega valued user data until they were shut down, and now they suddenly value it as a nice public ploy. Doesn't seem right, does it?

Re: Re: Re: Re: but...

So youare saying all major data companies such as Micosoft, Google, Amazon, Apple have to do an off line backup of their mutli peta bite network and that if they don;t they do nto care about their customers and replicating data accross data centers or backing up to disk is nto a viable backup shceme? You obviously do not work in the industry because that is how everyone does their backups these days.

Of course ther is child porn...

Whe are talking about some 25 petabytes of data and like 40 million accounts right? It would be extremely unlikely that there is not some kiddie porn in there somewhere. How cynical of our Department of Injustice to try to use this as a pretext to destroy evidence. That someone may access the kiddy porn is certainly not their motivation, they are attempting to hinder Mega's defense.

Picture a large Federal Express shipping center, millions of packages and letters inside. I don't even have to look to guarantee you there is some child porn in there. So do we destroy every package and burn the whole warehouse to the ground?

Re: Of course ther is child porn...

And this flys in the face of the Governments own case, they claimed that Mega had active filtering to remove known CP material, and the fact they didn't use it to stop copyrighted material shows how illegal they are... except no law demands that a service provider proactively search for copyrighted material. This is what the **AA's want, someone else to pay the bill to protect their material but its not law yet.

Re: Of course ther is child porn...

But it's not an enterprise backup service.

Remember Mega never advertised itself as a secure backup service. It was intended as a file sharing service and also as a secondary backup for non-critical data you presumably had backups of elsewhere. Therefore no one should be deluded by assertions they should have had internal backups (which of course would also have been siezed and destroyed anyway if they existed). Our corrupt government is trying to destroy evidence. If they succeed I would think it grounds for a mistrial, although I doubt our pro corporate judges would acquiesce to this bit of justice.

Must preserve evidence

Important distinction: the DOJ doesn't have to continue to run the business, just preserve the evidence (and make it available for legal defense purposes). Also, this is fundamentally different than, say, a drug case, where all the evidence is essentially the same thing (i.e. marijuana plants). The evidence is of differing types and copyright status and it definitely matters to the trial.

I say the DOJ should just pay the 9k per day, or buy the servers outright, and if they win take it out of the siezed assets and if they lose make MPAA pay.

Re: Must preserve evidence

The real reason to have the servers wiped is to finish destroying Mega as a business. The **AA's have declared cyberlockers are the last thing they can't control, and they need to be stopped. If they make any money it always has to be from their material, only their material makes any money... no one else is allowed to make money online unless they "steal" it from the **AA's. Its delusional to think that, but the Government also believes that billions of dollars are lost every day by that industry.

I always find it much more informative to have copies of all motions before me, and not just one prepared by counsel for the accused. Carpathia is obviously trying to remove a financial albatross from around its neck. Apparently the US DOJ has filed a response to Carpathia's motion, but what is contained in its response is not known. Only Megaupload's "story" is presented.

The most that can honestly be said at this point in time is that counsel for Megaupload have filed a response to Carpathia's motion, but neither that motion nor the DOJ's response are presently known.

Re:

Wow this is pretty messed up since it's pretty much illegal to destroy evidence before trial. There are a lot of cases where they wanted something destroyed because they were "done with it" and the courts told them hell no.

If they get away with this it could set a new precedence where they would be allowed to pick apart all the evidence for incriminating materials then destroy the rest.

Not very good at all for anyone this is something every single person in the USA should fight against because it could very well affect them at some point in the future.

A good example "worst case"
You're on trial for murder on a case that's been cold for a long time. Through all the evidence searched they have DNA of 2 persons but they only know who one persons DNA is and that's yours. Since there is no laws on destroying evidence when they finish with it anymore they just toss the 2nd DNA without anyone knowing ever.

You get the chair even though you're innocent. You're murdered with the whole world thinking you're some sick rapist murdering pedophile.
You suffer 20 years of abuse in prison since they all think just that before you are put to death or killed by a gang first.

Is the type of "law" we really fucking want? Both sides are meant supposed to be able to search all the evidence as they see fit. How can you gather your defense with no access to evidence? The answer is you cannot!

This might be a worse case but who's to say it can't happen if allowed to keep going in the direction their pushing for.

Re:

Drew, you miss the point here.

The government has collected their evidence, and is, after documentation, saying that "x and y and z are no longer required as evidence".

The servers at leaseweb are on par with a hotel room where a crime is committed. The government is not under obligation to keep paying the rent on the hotel room ad infinitum. They take the evidence that they deem to be of value (your 2 DNA samples) and they then release the hotel room back to the hotel. The hotel is not obliged to keep the room in the crime scene state until the end of the case.

As for the destruction of evidence, you have it wrong. In the US, evidence in cases is stored for a very, very long time, and is a requirement. With the appeals process, and all the "new evidence comes to light" stuff that is out there every day, they cannot take the risk to just toss out evidence at the end of the case. They have to retain it a very long time indeed - I wouldn't be shocked if they have to retain evidence until the end of the prison sentence or the end of all possible appeals.

That is why you hear about people getting off because of DNA evidence that shows they aren't guilty - tests that didn't exist 20 years ago that we have today, run on the evidence that was retained by law.

Re: Re:

You miss the point, by a long shot. The government went in grabbed a couple hundred or thousands of files out of Billions (with a "B") and wants all the other files destroyed. This is such a huge case of prior restraint that there are no words to express how horrible this is.

Re: Re:

He's talking about Holder's recent speech saying that you don't have judicial rights under the Constitution. Also, due process is having 15-20 guys go around and say "hey, that's illegal" before you have a judge or jury agree.

Re: Re:

"By having the servers wiped one can not challenge what was actually on the servers."

With the machines wiped and the number of files. Just doing the numbers on 25 P-bytes leads to a not guilty verdict. The line "The government has proven that less than on tenth of 1 percent of the files on mega upload were infringing" is self evident and says it all.

Re:

It violates Rules of Evidence and sets a precedent for non preservation of Digital evidential usage everywhere, not just the USA. And IT will affect them in EVERYTHING if the court rules in the affirmative to what the hosting service wants.

If Megaupload do somehow manage to gain back our data from the servers, i dont think casually browsing them for evidence that'll help would be a mistake, privacy wise, they'd be no better then the US government.

Instead, if they somehow do mange to gain access, i think the best approach would be to ask the public, previous megaupload uploaders, if any of them would be willing to allow access to their files, and the degrees of access theeir willing to give.......unlike the government, this would go along way to show us that our privacy actually MEANS, something to someone

Re:

What Mega doesn't want to admit is that, outside of a small group of it's users, most people aren't going to line up to admit that the japanese manga porn ripz that they uploaded are "theirs". With only 10% of users being uploaders at all, and with most of the uploads being infringing material, the amount of actual "innocent user data" belonging to users that did not upload copyright violating material is a very small percentages of the 25 PB of information.

Mega's attempt to gain access to the servers "for their defense" doesn't explain in any way how access to private user data files will help them fight the battle. It would appear that they are mostly interested in getting data that they can attempt to use to embarrass the government or the **AAs, thinking they can win the case in the court of public opinion. I can see nothing else that they can accomplish by obtaining the data or the rights to the servers.

The only other option is that they are trying to mirror the data to re-open the service. That is about the only logical conclusions.

Re: Re:

Re: Re:

Wouldn't it depend on who uploaded the "infringing" files? You don't think the **AA's are above uploading infringing content, either themselves or via a proxy, then pointing their fingers and yelling "PIRACY!!!," do you? Examining the contents of the files might shed some light if that were the case.

Re: Re:

All the data is and was private user data. If the DOJ can look through private user files to find copy righted material and try to blame these private user files on Mega then Mega should be able to dig through the private user files to show the opposite is true. Very simple. Mega did not own any of the files. Its users did and Mega had means for direct access to their servers for any copy right take downs. If Mega looses then all online providers would have to sift through everyones private files in order to determine their legality. There would in affect be no such thing as private user data.

Civil Court Case VS Criminal Court Case

It's hard not to sympathize for Kim Dotcom. His company has been branded as a criminal enterprise and he's facing serious prison time. His business has been destroyed, never to return.

It is hard to sympathize with the US Justice Department and their prosecutors. The cost of crony capitalism is coming home to roost. Their case is likely collapsing around them, and they found that out when they started looking at the data on the server. Now their reputations are on the line.

I'd like to suggest to the justice department their first duty is to the integrity of the system. Pay to preserve all the data and afford Mr. Dotcom the ability to defend himself. That way, if you win, you win for all of us. Swallow hard, and man-up to the fact there's more at stake here than just putting a guy in jail.

I'd like to suggest to the rest of the voting citizens of the country that it is time to think about how we will go about interrupting the relationship established by our business community (here, the [MP|RI]AA) with our legislative and executive branch. Frankly, the only answer I see is to vote against every incumbent (no matter what the party) in the upcoming elections.

Re: Civil Court Case VS Criminal Court Case

"Their case is likely collapsing around them"

How do you get to that? I am not seeing any "crumbling", rather it's such a solid case (especially because it is based not solely on copyright infringement but rather on the large scale laundering of money), that Kim is left having to flail around to try to find support in the court of public opinion.

It's hard to sympathize with a guy who made 100 million or more and lived like a king on the back of artists, film makers, and everyone else - and then has the balls to claim he is going to help them. He is only in that position because he robbed them blind first.

Sorry, but there isn't any crumbling going on that I can see - would you care to point to some?

Re: Re: Civil Court Case VS Criminal Court Case

I'm big on "what is done" and not is "what is said/written." Let's focus on what the prosecution is doing, specifically, what they're proposing here.

I'm just an ordinary fellow that really believes the idea that in a criminal case the accused is really "innocent until proven guilty beyond a reasonable doubt." FYI: that happens when a jury, not "ANONYMOUS COWARD," says "GUILTY!"

I've also witnessed what happens in a computer forensic investigation. We're talking PB of data here. Is it credible the prosecution could go through that quantity of data and do a competent investigation in a matter of days? I'd say no, unless there were hundreds (maybe thousands) of expert criminal forensic technicians, knowledgeable in the setup and operation of the cloud that used to be MegaUpload, able to work in a carefully coordinated manner for weeks, maybe months.

I get it that the content producing industry, and artists of all sorts, think this guy is horrible and needs to rot in jail forever. If I were the victim of a crime I'd expect the state to seek justice for me.

But justice must be fairly attained and not by compromising the faith that the people have in the legal system. I don't see how you can keep the faith if you don't preserve all the data and afford even an evil infringer the right to a defense. The basic requirement to that end is paying the $9K/day to save the data that used to be MegaUpload.

And this simple fact is why I think the case is collapsing. If the government believed they had all the data they needed to get a "beyond a reasonable doubt" conviction they'd pay the money (by taking it out of the seized assets of MegaUpload). But the state doesn't want to do that even if "child pornography" is present.

Like I said, I'm big on "what they do" and not "what they say." Given this, it sure looks like the government has doubts about their case.

Mega-upload takedown

Mike, I think it should be painfully obvious to you that the government doesn't need the evidence because they have already taken a copy of everything they need, 47 gb's worth, so they can still provide it all to MegaUpload for the trial.

Re:

Data Retension

I had a job working for a bank that failed. The FDIC came in and did an "assisted sale" basically forcefully closing the place and then selling it to a bigger bank at pennies on the dollar. The FDIC made multiple copies of all data using multiple retension team. From imaging all servers and data stores to parsinf through all data and sorting it so it was easily searchable. Even though they were only investigating about 6 people at the top they reatined multiple copies of all data. Every single email ever sent by any user. Every file from every user. I know because I was hires to help the FDIC retain the data. It was around 25 Teraytes and they took mutliple copies in multiple different formats and extraction methods. After they took it all they still required the new purchaser of the bank to retain all data for 10 years. All of this to investigate 6 people. But in the case of Mega's copy infringment which they did not do because the files were not theirs and in the case of Mega's money laundering they data is simple not needed. No retention required. Seems very strange and this is coming from a person who has direct experience in this sort of thing.

My analogy to the US Attorney's actions against Mega-Upload:
This is like they find one person raising pot in a thousand apartment complex. So they arrest all the building staff, evict all the tenants, seize all their belongings and burn the entire complex to the ground.

This seems more like some sort of politically motivated vendetta than due process to me. Otherwise, why rob over a million users, most of whom are probably innocent third parties, of their property when there are better, more effective and much less destructive ways of going about this? Why burn the barn down with other people's livestock in it to get rid of some rats, when a cat would do the job much more effectively and without having to destroy the barn?

the FEDS may be involved.

Megaupload claims that the FEDS have data in their servers and used their services.

If the FEDS' data in megaupload is revealed, t
hen the FEDS used a service they have claimed to be illegal and knew was illegal yet they used it making them accessories to crime perhaps.

This is a case megaupload is going to show. The FEDS themselves used their 'so-called' illegal service for their own gain and perhaps also the type of data stored by FEDS may not be legal or good or may even be porn or some incriminating evidence.

This may be why the FEDS want selected data and delete evidence against them!